Indigenous Brazilians and Carbon Rights Ownership

Published on 11th December 2009

Finding could impact other indigenous groups seeking to protect land, way of life

A new legal opinion released from one of the world’s largest law firms has found that a vulnerable Brazilian tribe in the Amazon region owns carbon-trading rights in future global warming deals, a development that could preserve vast areas of the rainforest. The groundbreaking finding, said advocates, should apply to other indigenous groups in Brazil, home to 40 percent of the world’s rainforests, representing a major step forward in protecting indigenous people’s land rights.

The opinion on the carbon rights of the Surui tribe by international law firm Baker & McKenzie was commissioned by Forest Trends, a conservation group based in Washington, D.C., that works to protect forests around the world.

The significance of the finding, said Forest Trends officials, is that when climate change negotiators strike a new deal to reduce harmful emissions, indigenous groups such as the Surui won’t be left behind—and, in fact, can benefit and help save vast swaths of the rainforest. Those protected forests will play a major role in absorbing carbon emissions, limiting the release of dangerous gases into the atmosphere.

“This really is a landmark opinion,” said Michael Jenkins, President and CEO of Forest Trends. “What we have been able to demonstrate here is that there will be opportunity and a path forward for indigenous groups to participate in emerging markets from a global warming deal. In fact, the indigenous groups would now be part of the solution.”

Over the last several years, many indigenous groups have expressed concern that a climate change deal would be yet another international agreement that eroded their rights. In response, Forest Trends asked Baker & McKenzie to research whether Brazilian law would allow the Surui and other indigenous groups in Brazil to claim benefits under any deals involving the Reduced Emissions from Deforestation and Degradation (REDD) arrangements, now being considered as a centerpiece of global warming talks during the UN Climate Change Conference in Copenhagen.

Baker & McKenzie’s work was done through its Brazilian-associated office, Trench, Rossi e Watanabe Advogados. Its finding—which is not binding but comes against the political backdrop in Brazil of strong federal government support for indigenous groups—said that under REDD deals, the Surui indigenous group would be able to oversee management of the forest as well as reap any economic benefits from carbon trading arrangements.

The finding said the conclusion was based on the Brazilian Constitution and legislation, which “provides for a unique proprietary regime over the Brazilian Indians land...which reserves to the Brazilian Indians…the exclusive use and sustainable administration of the demarcated lands as well as…the economic benefits that this sustainable use can generate.’’

Another important element raised by the opinion is the need for the Surui to secure financial returns that are compatible with the environmental services provided by managing the vast forest on Surui land, and to provide transparent and price competitive proceedings for the commercialization of the credits, which will be in alignment with Brazil’s overall national sovereign interest.

“This study confirms that we have the right to carbon, and is also an important political and legal instrument to recognize the rights of indigenous people for the carbon in their standing forests,’’ said Chief Almir Narayamoga Surui, leader of the Surui tribe. “It helps in our dialog with the government, businesses, and other sectors, strengthening the autonomy of indigenous peoples to manage our territories.”

The finding could be a huge boost to the survival of the Surui tribe, which has endured many threats to its existence. The Surui, with support from Forest Trends and other partners, have developed a project looking to international carbon offset finance to help them preserve their imperiled forest and way of life. With just 1,200 members overseeing 600,000 acres of land in the Amazon basin—three-quarters the size of the state of Rhode Island—the Surui tribe first came in contact with Brazilians of European descent only 40 years ago, and it resulted in an almost immediate series of tragedies; their population was reduced from over 5,000 to 290 people from disease for which members had no immunity. In more recent years, illegal loggers invaded the Surui’s land threatening the community. And 11 regional indigenous leaders have been assassinated in recent years—killings believed to be directed by logging and mining captains.

But the tribe has organized simultaneous efforts on different political and legal fronts in recent years, winning major support from the Brazilian national government, conservation organizations such as Forest Trends, and through a major mapping project with the Amazon Conservation Team and Google Maps that, in rich detail, documented the natural and human history of the land over the years.

Chief Almir, who has received several assassination threats in the past and for a time fled to the United States for his safety, has been one of several Surui leaders trying to win national and international support on environmental issues.

“This finding should greatly help the Surui and, by extension, other indigenous groups in Brazil,’’ said Beto Borges, Director of Communities and Markets Programs at Forest Trends. “Not only do the indigenous groups have the ethical right for carbon credits projects on their land and because of their stewardship role over the generations, but this finding now means they have the legal right as well. It’s a major step forward.’’